Justiciability of Political Questions in South Africa

Acknowledgements xiii
List of Abbreviations xv

Introduction xvii

1 Conceptual Overview 1
1.1 Introduction 1
1.2 Theoretical Framework 8
1.2.1 The Classical Political Question Theory 8
1.2.2 The Prudential Political Question Theory 9
1.2.3 Separation of Powers 10
1.2.4 Judicial Review 13

2 The Genesis and Modern Application of the Political Question Doctrine in the United States 27
2.1 Introduction 27
2.2 Early Application of the Classical Political Question Doctrine 27
2.3 Early Application of the Prudential Political Question Doctrine 36
2.4 Supreme Court Jurisprudence Post Baker v. Carr 39
2.4.1 Powell v. McCormack 39
2.4.2 Gilligan v. Morgan 41
2.4.3 Nixon v. United States 42
2.5 Criticism of the Six-Factor Test in Baker v. Carr 43
2.6 A Survey of Federal Courts’ Application of the Political Question Doctrine 46
2.7 A Survey of the Application of the Political Question Doctrine by Federal States 50
2.7.1 State Court’s Areas of Application 52
2.7.1.1 Involving Coordinate Branches of Government 52
2.7.1.2 Involving Election Processes 55
2.8 The Political Question Doctrine after Zivotofsky v. Clinton 57
2.9 Conclusion 65

3 Separation of Powers and the Evolution of the Political Question Doctrine in Ghana 67
3.1 Introduction 67
3.2 The Application of the Political Question Doctrine 68
3.3 A Legislative Decision to Declare a Public Holiday 71
3.4 The Appointment of a Chief Justice 74
3.5 Dismissal of a Cabinet Minister 77
3.6 A Legislative Decision to Retain a Member of Parliament 82
3.7 The Justiciability of Directive Principles and State Policy 84
3.8 Conclusion 91

4 The Application and Evolution of the Political Question Doctrine in Uganda 93
4.1 Introduction 93
4.2 Constitution-Making 93
4.3 Military Matters 101
4.3.1 Supreme Court’s View 101
4.3.2 High Court’s View 109
4.4 Internal Affairs of Parliament 117
4.5 Maternal Health Matters 118
4.5.1 Constitutional Court Approach to Maternal Health Matters 118
4.5.2 Supreme Court Approach to Maternal Health Matters 123
4.6 Conclusion 125

5 The Application and Evolution of the Political Question Doctrine in Nigeria 127
5.1 Introduction 127
5.2 Impeachment Proceedings 128
5.3 Political Party Primaries 130
5.4 The Doctrine During the Second Republic 1979-1983 138
5.4.1 Permissive Application 138
5.4.2 Restrictive Application 140
5.5 The Doctrine During the Fourth Republic 1999 to Date 143
5.5.1 Impeachment Question Revisited 144
5.5.2 Political Party Primaries Revisited 148
5.6 Conclusion 153

6 The Development and Application of a Comprehensive Political Question Doctrine in South Africa 155
6.1 Introduction 155
6.2 Constitutional Principles IV and VI 157
6.3 Emergence of the Political Question Theory 165
6.4 Political Question Doctrine or Mere Deference: Jurisprudence from the Constitutional Court 169
6.5 Justiciability of Foreign Affairs 179
6.6 Challenges with Implementation of the Doctrine 184
6.7 The Limits of the Doctrine 188
6.8 Justifying the Doctrine 191
6.9 Reinforcement of the Doctrine: Political Accountability Provisions 195
6.10 Response to Opponents of the Doctrine 208
6.11 Conclusion 219

7 The Future of the Political Question Doctrine in South Africa 221
7.1 The Main Arguments 221
7.2 What Doctrine to Implement 223
7.3 Consequences of Failure to Implement 229

Bibliography 233
Index 263